National Consumer
Disputes Redressal Commission
Revision Petition No. 343 of 2005
[(From
the order dated 14.12.2004 passed in Miscellaneous Case No.81 of 2004 (arising
from C.C. Case No.60 of 1991) passed by the State Commission, Bihar)]
.1.
Birendra
Mohan Kumar Sinha,
R/o
.2. M/s. Laxmi
Textiles,
Proprietor Shri B.M.K.Sinha … Petitioners
Versus
.1. The New India
Assurance Co. Ltd.
Head Office, 87,
Fort, Mumbai – 400
023.
.2. The Chairman,
New India
Assurance Co. Ltd.,
87,
Fort, Mumbai – 400
023.
.3. The Regional Manager,
New India
Assurance Co. Ltd.,
7th Floor,
BEFORE:
HON’BLE MR. JUSTICE M.B.SHAH,
PRESIDENT.
MRS. RAJYALAKSHMI RAO,
MEMBER.
For
the Appellants : Mr. Shambhu
Pd. Singh and
Mr. Ranjeet Sharma, Advocates
For
the Respondents : Mr. Manish Jain, Advocate
For Mr. Ajay Majithia,
Advocates
Dated :
O R D
E R
M.B.SHAH, J. PRESIDENT.
This
Revision Petition arises out of an execution petition No.81 of 2004 in
Complaint Case No. 60 of 1991 filed by the Petitioner-Complainant, in the State
Commission,
Before going to deal with the
facts of the case, we will mention below the different orders passed by the
State Commission, the
|
Sl. No. |
Case No. |
Date of Filing |
Date of Disposal |
|
1. |
CC Case No.60/91 filed by the
Complainant before State Commission |
After Oct. 1991 |
Allowed on 15.9.1992 |
|
2. |
Insurance Company filed FA No.
543/1992 before the National Commission against the order of State Commission |
|
Appeal was dismissed on 16.1.1995 |
|
3. |
Title Suit No. 9/92 was filed by the
Bank in |
4.2.1992 |
On 5.5.1995 the |
|
4. |
Mis. Case No. 2/95 was filed by
Bank before State Commission |
12.4.1995 |
Both the Mis.
Applications were dismissed by the
State Commission for default. |
|
5. |
Mis. Case No.3/95 was filed by the
Complainant before State Commission |
25.4.1995 |
|
|
6. |
Mis. Case No. 4 / 96 was filed by
the Complainant |
16.8.1996 |
Disposed of as compromised between
the Insurance Company and the Bank, subject to “final accounting of which is
yet to be done”. |
|
7. |
Mis. Case No.9/98 filed by the
Complainant before the State Commission |
13.4.1998 |
This was heard in the year 2000 and
dismissed on 8.4.2003. |
|
8. |
Mis. Case No. 81/04 was filed by
the Complainant before the State Commission |
7.12.2004 |
The State Commission dismissed it on
14.12.2004 |
|
9. |
Hence, R.P. No.343/2005 is filed by
the Complainant against the order passed in Mis.Case
No.81/04 |
27.1.2005 |
|
Brief Facts:
Undisputedly,
the Petitioner filed Complaint Case No.60 of 1991 before the State Commission,
Against the order of the
State Commission, the Insurance Company preferred First Appeal No. 543 of 1992
before this Commission. In the said appeal Central Bank of India was added as party Respondent, because the insurance policy was taken by the Bank on
behalf of the Complainant, and it was contended by the Bank that the amount
which was payable by the Insurance Company was to be paid to the Bank. That appeal was dismissed by the National
Commission by order dated 16.1.1995.
Title Suit No. 9 of
1992:
It is also to be stated that
during the pendency of C.C. No.60/91 filed by the Complainant in the State
Commission, the
Bank filed Title Suit No. 9 of 1992 on 4.2.1992 for realisation of the loan
amount granted to the Complainant and in that suit the Insurance Company was
made party-Defendant. On 5.5.1995 the Bank got an interim order from the civil
court for maintaining status quo with regard to the payment of compensation
payable by the Insurance Company to the Complainant.
Upto
this, there is no dispute with regard to facts. The dispute arises thereafter.
Miscellaneous
Case No.2 of 1995:
The
Bank filed Miscellaneous Case No.2 of 1995 on 12.4.1995 (i.e. after the appeal
filed by the Insurance Co. was dismissed by the State Commission) before the
said State Commission for handing over the amount of compensation directly to
the Bank and also informed the State Commission about the ‘status quo’ granted
by the Civil Court in T.S. No.9/92 on 4.4.1995.
Miscellaneous
Case No. 3 of 1995:
On 25.4.1995, the Complainant
filed Miscellaneous Case No. 3 of 1995 for execution of the order passed by the
State Commission as the appeal filed by the Insurance Co. in the National
Commission was dismissed, and demanded Rs.14,90,607.90 from the Insurance
Company with interest payable thereon as directed by the State Commission.
It is submitted by the Complainant
in the said Miscellaneous Case that without
giving the statement of accounts the Insurance Company gave a photocopy
of the cheque dated 19.4.1995 for a sum of Rs.12,48,117/- payable to Laxmi Textiles. No order was passed by the State
Commission. However, it is the
contention of the Complainant that the State Commission had observed orally to
handover the cheque to the Complainant but that was not done.
Thereafter both the
Miscellaneous Cases No. 2 and 3 of 1995 were dismissed in default on 15.4.1996
as all the parties were absent and the restoration petition filed by the
Complainant was also dismissed. The
complainant was asked to file a fresh Miscellaneous Case. Hence, the Complainant has filed Miscellaneous Case No.4/1996.
Miscellaneous
Case No.4 of 1996:
Thereafter, the Complainant
filed Miscellaneous Case No. 4 of 1996 on 16.8.1996 demanding Rs.18,00,773/- with interest due thereon till the filing of Miscellaneous
Case No.4/96. In that case the bank was also joined as a party.
Undisputedly, a compromise
was arrived at between the bank and the Complainant for the amount payable by
the Complainant to the bank.
Therefore, they filed a joint compromise petition on 24.3.1998 before the State
Commission. For that purpose, the Insurance Company preferred an application
before the State Commission stating that in terms of the direction issued by
the learned Sub-Judge,
On
the basis of the said application, the State Commission passed an order dated
24.3.1998 stating that as per the terms of the compromise, the Petitioners
would pay to the Bank a sum of Rs.6,50,000/- in full and final
satisfaction of their claim in the Suit
filed by them before the Sub-Judge, Patna. It was
also further stated that
the Insurance Company would pay a sum of Rs.7,03,901/- with
interest at the rate of 18% w.e.f. 7.1.1991 till the
realisation with costs (final
accounting of which is yet to be done) and on submission of the cheque by
the Insurance Company before the State
Commission the same would be received by the Petitioner who would hand
over the same to the Bank for depositing in its branch at Rukunpuna.
The application was disposed of in terms of compromise between the parties.
Miscellaneous Case
No. 9 of 1998:
Learned
Counsel for the Petitioner (Complainant) submitted that the aforesaid amount of
Rs.12,48,117/- was accepted on 24.3.98 subject to
final accounting which was to be made between the Complainant and the Insurance
Company. As that was not done, the
Complainant filed Miscellaneous Case No. 9 of 1998 on 13.4.1998 after obtaining
a certificate dated 13.4.1998 from the Chartered Accountant to the effect that
on the basis of the judgment of the State Commission the Complainant was
entitled to recover the remaining amount of Rs.3,69,345/-
with further interest thereon from 24.3.1998, i.e. the date when partial payment
was made without submitting any final accounts.
That Miscellaneous Application was dismissed by order dated 8.4.2003.
The State Commission, inter alia, observed that the Consumer forum was not a
fit place for going into the matter of calculation of accounts as the matter
was disposed of in the presence of both the parties.
Miscellaneous Case
No.81 of 2004:
It is contended that as the
order was pronounced after a lapse of 2 years after hearing of the Case and the
same was disposed of without proper calculation, the Complainant, therefore,
approached the State Commission by filing fresh Miscellaneous Case No. 81 of
2004 on 7.12.2004. That application was
dismissed by the State Commission at the admission stage by order dated
14.12.2004 (Annexure 11).
While dismissing the Miscellaneous application No. 81 of 2004 the State
Commission observed that in view of the compromise between the parties, the
Petitioner accepted Rs.12.48 lakhs on 24.3.1998 and on this account earlier
Miscellaneous Case was dismissed.
Thereafter, another Miscellaneous Case No. 9 of 1998 was also dismissed
on 8.4.2003. It was also observed that fresh application was filed virtually
after one year. Hence, filing of such repeated Miscellaneous Cases amounted to
abuse of process of law. It was also
held that as directed by the State Commission in previous order, it was open to
the Petitioner to move the civil Court. Against that order this Revision
Petition is filed.
In the Revision Petition the
Complainant states that on 23.3.1998 the Insurance Company had to pay
Rs.16,18,194/-; the Insurance Company paid only Rs.12,48,117/- ‘subject to
calculation’; therefore, on 23.3.1998 he
is entitled to a further sum of
Rs.3,70,077/-. Hence, he prays that the Insurance Company may be
directed to pay Rs.3,70,077/- with interest @ 18% per annum from 23.3.1998 till
20.10.2005, which comes to Rs.8,71,780/-.
Submissions:
It is contended by the
learned Counsel for the Complainant that the Complainant should not suffer
because of the interim order passed by the
“1. Principle Amount Rs. 7,03,901.00
2.
Interest
@ 18% from
7.1.1991 till the date of
payment, i.e. 24.3.1998 Rs. 9.13,293.00
3. Cost of case Rs.
1,000.00
________________
Rs. 16,18,194.00
==============
We certify
that Rs.3,70,077.00 (Rupees 16.18,194.00 minus
Rs.12,48,117.00) along with interest @ 18% is payable. Calculation based on
interest after 24.3.1998 is
mentioned below:-
1. Principle
amount Rs. 3,70,077.00
2.
interest
@ 18% from
24.3.1998 till the date
of payment, i.e.20.10.2005 Rs. 5,01,703.00
_______________
Rs. 8,71,780.00
==============
As
against this, learned Counsel appearing on behalf of the Insurance Company submitted
that there was a direction to the Insurance Company to maintain status quo with
regard to payment, as the title suit was pending. So, there is no fault with
the Insurance Company in not paying the amount as directed by the State
Commission. Therefore, the Insurance Company would not be liable to pay
interest from the date of the interim order passed by the civil court, i.e.
5.5.1995, as the Insurance Company has shown its willingness to pay the amount
prior to the said date. He has also submitted that the Complainant has accepted
the amount of Rs.12,48,117/- in full and final
settlement of his claim and therefore
the application was not maintainable.
Findings:
Considering the aforesaid
facts, it cannot not be disputed that the amount payable to the Complainant
remained with the Insurance Company due to interim order of status quo passed
by the civil court. It cannot also be disputed that the State Commission had
passed the order directing the Insurance Company to pay the amount with
interest till its payment. In such a
case,
(i). Whether the execution
petition was rightly dismissed on the ground that repeated execution
applications were not maintainable.
(ii). whether the Insurance Company should be directed to pay interest at
the reasonable rate?
(iii) Whether the principles of restitution as
provided in Section 144 of
CPC could be applied?
Issue
Nos. 1 and 2
We would decide the first and
the second issue jointly by holding that it has been rightly pointed out by the
learned Counsel for the Complainant that the Miscellaneous Case No. 9 of 1998 was heard and
the order was pronounced after a lapse of 2 years which resulted in miscarriage
of justice. In our view, the State Commission was expected to pronounce the
judgment within a reasonable time and the delay of 2 years is totally
unjustified. Further, execution application (Miscellaneous Case No.9/98) was
dismissed by observing that the State Commission was not a place for going into
the mater of calculation of accounts as the matter was disposed of in the
presence of both the parties. This finding is totally erroneous. In that
execution application the amount payable was required to be calculated for
finalising the claim. It cannot be said
that the State Commission cannot go into the matter of calculation of accounts.
It was a simple calculation of interest from the date specified in the order
till its payment at the rate specified therein.
However, instead of
challenging the said order before the National Commission, the Petitioner was
advised to approach the State Commission, may be
erroneously or by way of review by filing Miscellaneous Case No.81/2004. That
Miscellaneous Case was dismissed on 14.12.2004 by holding that repeated
applications were not maintainable. This finding is also erroneous, because in
the order dated 24.3.1998 passed in
Miscellaneous Case No.4/98, it
was specifically mentioned that acceptance of the amount of Rs.12,48,117/- was
subject to final accounting of the amount payable by the Insurance Company.
That order cannot be said to be final, if there is some mistake or error in
calculation of the amount payable by the Insurance Company. Therefore, the
Complainant was entitled to approach the State Commission in case of mistake in
calculation and that was done by the Complainant.
Further,
if we consider the fact that State Commission has directed the Insurance
Company to pay the amount of Rs.7,03,901/- for the
loss suffered by the Complainant with interest at the rate of 18% p.a. from
7.1.1991, then the exact amount payable on the date of its payment, namely, on
24.3.1998 would not be Rs.12,48,117/- which is paid to the Complainant. The amount will be : principle
Rs.7,03,901/- lakhs plus interest
Rs.9,14,000/- plus Rs.1,000/- as costs
which comes to Rs.16,18,194/-, as certified by the Chartered Accountant. Hence,
the Insurance Company is required to pay the balance of Rs.3,70,077/-.
Learned Counsel for the Complainant, next, submitted that the Petitioner is entitled to interest on the remaining balance amount of Rs.3,70,077/- in our view, this submission is unjustified. There is no question of paying interest on interest. Secondly, the Petitioner has accepted the amount of Rs.12,48,117/- without producing proper calculation at the relevant time. Otherwise, the Insurance Company would have paid the same.
Issue
No.3
Payment
of this amount i.e. Rs.3,70,077/- would be in
conformity with the principles of restitution enunciated in Section 144 of the
C.P.C. In the case of
Kartar Singh alias Naranjan
Singh & Ors. Vs. State of Punjab, (1995) 4 SCC 101, while
interpreting the doctrine of restitution under Section 144 C.P.C. the Apex
Court has observed as under:
“The
court, therefore, is bound to restore the parties, as far as they can be, to
the same position they were at the time when the court by its erroneous action
had displaced them from it.” ….. “The reason being that the
person who has taken the money improperly from the judgment-debtor has to
restitute to him the amount as a corollary with interest during the time that
the money has been withheld from him.”
In
any set of circumstances,
because of the interim order passed by the
In the result, the Revision Petition is allowed. The Insurance Company is directed to pay Rs.3,70,077/- to the Complainant within a period of two months from today. There shall be no order as to costs.
…………………………..J.
( M.B.SHAH)
PRESIDENT
…………………………….
(RAJYALAKSHMI
RAO)
MEMBER